2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-26-2014

Collette Davis v. Abington Mem Hosp

Precedential or Non-Precedential: Precedential

Docket No. 12-3512

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 12-3512

_____________

COLLETTE DAVIS; ERICA WILLIAMS; 

KEVIN KELLER; CHARLENE MURDOCH, on behalf of 

themselves and all other employees similarly situated,

Appellants

v.

ABINGTON MEMORIAL HOSPITAL; 

ABINGTON HEALTH;

ABINGTON MEMORIAL HOSPITAL FOUNDATION; 

LANSDALE HOSPITAL

_____________

No. 12-3514

_____________

KENNETH LYNN; CHARLENE AGNEW; 

MARGARET KNAPP, on behalf of themselves and 

all other employees similarly situated,

Appellants

v.

ARIA HEALTH SYSTEM; 

ARIA HEALTH - FRANKFORD CAMPUS;

ARIA HEALTH - TORRESDALE CAMPUS; 

ARIA HEALTH - BUCKS COUNTY CAMPUS
2

_____________

No. 12-3515

_____________

KENNETH LYNN; ACADIA WILCOX; 

LORETTA MCDONNELL; GERARDINA ILARIA; 

PATRICIA GREEN, on behalf of themselves

and all other employees similarly situated,

Appellants

v.

JEFFERSON HEALTH SYSTEM; 

THOMAS JEFFERSON UNIVERSITY HOSPITAL; 

MCGEE REHABILITATION HOSPITAL; 

MAIN LINE HEALTH INC; 

ALBERT EINSTEIN HEALTHCARE NETWORK;

ARIA HEALTH SYSTEM

_____________

No. 12-3521

_____________

CASSANDRA RUFF; KESHA CARDWELL, on behalf of

themselves and all other employees similarly situated,

Appellants

v.

ALBERT EINSTEIN HEALTHCARE NETWORK;

ALBERT EINSTEIN MEDICAL CENTER
3

_____________

No. 12-3522

_____________

JOHN DUNCHESKIE; DIANE READ; THELMA HARRIS;

ELEANOR JACKSON

Appellants

v.

TEMPLE UNIVERSITY HEALTH; 

TEMPLE UNIVERSITY HOSPITAL;

EPISCOPAL HOSPITAL; JEANES HOSPITAL

___________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(Nos. 2-09-cv-05520, 2-09-cv-05548, 2-09-cv-05549, 

2-09-cv-05550, 2-09-cv-05551)

District Judge: Honorable Cynthia M. Rufe

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

February 10, 2014

____________

Before: CHAGARES, SHWARTZ, and ALDISERT, 

Circuit Judges.

(Filed: August 26, 2014)

____________

OPINION

____________

Jared K. Cook, Esq.

Michael J. Lingle, Esq.

J. Nelson Thomas, Esq.

Thomas & Solomon

693 East Avenue

Rochester, NY 14607

Attorneys for Appellants
4

Kristen E. DiMaria, Esq.

Julie A. Donahue, Esq.

Ogletree, Deakins, Nash, Smoak & Stewart

1735 Market Street, Suite 3000

Philadelphia, PA 19103

Andrea M. Kirshenbaum, Esq.

Post & Schell

1600 John F. Kennedy Boulevard

Four Penn Center, 14th Floor

Philadelphia, PA 19103

Christopher J. Moran, Esq.

Jan P. Levine, Esq.

Andrea T. Ohta, Esq.

Sara B. Richman, Esq.

Robin P. Sumner, Esq.

Justin J. Williams, Esq.

Pepper Hamilton

18th & Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

Eric J. Bronstein, Esq.

John M. Elliott, Esq.

Mark J. Schwemler, Esq.

Gregory S. Voshell, Esq.

Elliott Greenleaf & Siedzikowski

925 Harvest Drive

Suite 300, Union Meeting Corporate Center V

Blue Bell, PA 18422

Sean P. McDevitt, Esq.

Kali T. Wellington-James, Esq.

Pepper Hamilton

899 Cassatt Road

400 Berwyn Park

Berwyn, PA 19312
5

Larry R. Wood, Jr., Esq.

Blank Rome

130 North 18th Street

One Logan Square

Philadelphia, PA 19103

Alexandra Bak-Boychuk, Esq.

Shannon D. Farmer, Esq.

David S. Fryman, Esq.

John B. Langel, Esq.

Rebecca L. Massimini, Esq.

Ballard Spahr

1735 Market Street

51st Floor

Philadelphia, PA 19103

Attorneys for Appellees

CHAGARES, Circuit Judge.

This is an appeal from, inter alia, the District Court’s 

order dismissing the third amended complaint in five cases: 

Collette Davis, et al. v. Abington Memorial Hospital, et al., 

No. 09-cv-05520; Kenneth Lynn, et al. v. Aria Health 

System, et al., No. 09-cv-05548; Kenneth Lynn, et al. v. 

Jefferson Health System, Inc., et al., No. 09-cv-05549; 

Cassandra Ruff, et al. v. Albert Einstein Healthcare Network, 

et al., No. 09-cv-05550; and John Duncheskie, et al. v. 

Temple University Health System, Inc., No. 09-cv-05551.1 

Each of these putative collective and class actions arose from 

the plaintiffs’ allegations that their employers, defendant 

healthcare systems and affiliates (collectively, the 

“defendants”), implemented timekeeping and pay policies 

that failed to compensate them for all hours worked in 

violation of the Fair Labor Standards Act (“FLSA”) and 

Pennsylvania law. For the reasons that follow, we will 

affirm.

 

1 The District Court’s order dismissing Susan Frattarola, et al. 

v. Mercy Health System of Southeastern Pennsylvania, et al., 

No. 09-cv-5533, was also appealed, but we subsequently 

dismissed that appeal pursuant to Federal Rule of Appellate 

Procedure 42(b). See No. 12-3513.
6

I.

The five cases on appeal are among several similar 

actions brought by a single law firm alleging systemic 

underpayment in the healthcare industry. The parties are 

nurses and other patient-care professionals, on behalf of a 

putative class, and their alleged employers. Allegedly, the 

defendants2 maintained three unlawful timekeeping and pay 

policies (collectively, the “Policies”). First, under the “Meal 

Break Deduction Policy,” the defendants’ timekeeping system 

automatically deducted thirty minutes of pay daily for meal 

breaks without ensuring that the employees actually received 

a break. Second, under the “Unpaid Pre- and Post-Schedule 

Work Policy,” the defendants prohibited employees from 

recording time worked outside of their scheduled shifts. 

Third, under the “Unpaid Training Policy,” the defendants did 

not pay employees for time spent at “compensable” training 

sessions. Because of the Policies, the plaintiffs allege that 

they “regularly worked hours both under and in excess of 

[forty] per week and were not paid for all of those hours.” 

Appendix (“App.”) 845, 1469, 1655, 2330–31, 3259. 

In November 2009, the plaintiffs filed parallel 

complaints in the United States District Court for the Eastern 

District of Pennsylvania against the defendants,3asserting 

violations of the FLSA, 29 U.S.C. §§ 201, et seq.; the 

Employee Retirement Income Security Act of 1974 

 

2 The defendants are: (1) Abington Memorial Hospital, 

Abington Health, Abington Memorial Hospital Foundation, 

and Lansdale Hospital; (2) Aria Health System, Aria Health–

Frankford Campus, Aria Health–Torresdale Campus, and 

Aria Health–Bucks County Campus; (3) Jefferson Health 

System, Inc., Thomas Jefferson University Hospitals, Inc., 

Magee Rehabilitation Hospital, and Main Line Health, Inc.; 

(4) Albert Einstein Healthcare Network and Albert Einstein 

Medical Center; (5) Temple University Health System, Inc., 

Temple University Hospital, Inc., Episcopal Hospital, and 

Jeanes Hospital.

3 A seventh complaint was filed against the University of 

Pennsylvania Medical Center and related entities, see No. 09-

cv-5547; that case later settled.
7

(“ERISA”), 29 U.S.C. §§ 1001, et seq.4; and the Racketeer 

Influenced and Corrupt Organizations Act (“RICO”), 18 

U.S.C. §§ 1961, et seq. Less than one week later, the same 

individual plaintiffs filed suit in the Court of Common Pleas 

of Philadelphia County, alleging that the Policies violated the 

Pennsylvania Wage Payment and Collection Law 

(“PWPCL”), 43 Pa. Stat. Ann. §§ 260.3, et seq.; the 

Pennsylvania Minimum Wage Act (“PMWA”), 43 Pa. Stat. 

Ann. §§ 333.101, et seq.; and Pennsylvania common law.

The defendants timely removed six of the seven state 

court actions to federal court, on the basis that several of the 

claims were completely preempted by ERISA § 502(a)(1), 29 

U.S.C. § 1132(a)(1), and supplemental jurisdiction existed 

over the remaining claims because they formed part of the 

same case or controversy. The Jefferson Health and Albert 

Einstein defendants additionally argued that the plaintiffs’ 

PWPCL and breach of contract claims were completely 

preempted by § 301 of the Labor Management Relations Act 

(“LMRA”), 29 U.S.C. § 185. The District Court denied the 

plaintiffs’ motions to remand on September 15, 2010, holding 

that ERISA preempted the state claims “in full” and LMRA § 

301 completely preempted the plaintiffs’ PWPCL and breach 

of contract claims. App. 193–99. In the same order, the court 

consolidated each of the state cases with its federal 

counterpart and directed the plaintiffs to file consolidated 

complaints. 

The plaintiffs filed amended complaints on October 

15, 2010, averring, as before, that the defendants: denied 

them overtime in violation of the FLSA; failed to keep 

accurate records and breached their fiduciary duties in 

violation of ERISA; and, in so doing, violated RICO. The 

amended complaints also reasserted all of the state law 

claims. The District Court granted the defendants’ joint 

motions to dismiss in a consolidated opinion. It found that 

the amended complaints did not plausibly allege that the 

 

4 The plaintiffs’ ERISA claims were: failure to keep accurate 

records sufficient to determine benefits in violation of 

ERISA’s recordkeeping provision under 29 U.S.C. § 

1059(a)(1) (ERISA § 209(a)(1)); and breach of fiduciary duty 

under 29 U.S.C. § 1104(a)(1) (ERISA § 404(a)(1)).
8

defendants were the plaintiffs’ employers and thus failed to 

state claims under the FLSA or ERISA. It also dismissed the 

RICO claims, on the ground that the complaints did not 

adequately allege the predicate act of mail fraud. Further, it 

“decline[d] to exercise supplemental jurisdiction” over the 

state law claims. App. 54. The court granted the plaintiffs 

leave to amend, but cautioned them to “remedy the gaping 

deficiencies” observed by it and other district courts that have 

dismissed substantially similar complaints. App. 55 & nn.70–

72 (citing cases). In particular, the plaintiffs were instructed 

to “clari[fy]” whether they were also seeking gap time wages. 

App. 49 n.49.

After the plaintiffs filed a second amended complaint 

in each case, the parties stipulated to the filing of third 

amended complaints. The third amended complaints, which 

were filed on February 10, 2012, abandoned the ERISA and 

RICO claims and instead sought relief solely under the FLSA 

and Pennsylvania law. The defendants moved to dismiss, and 

the District Court granted their motions in another 

consolidated opinion. The court dismissed the plaintiffs’ 

FLSA claims with prejudice5 on the grounds that they failed 

to plausibly allege employer-employee relationships between 

the plaintiffs and all of the defendants, or that any of the 

named plaintiffs had worked overtime and were not 

compensated. The court again “decline[d] to exercise 

supplemental jurisdiction” over the remaining state law 

claims, which it dismissed without prejudice to their 

reassertion in state court. App. 7, 72. The plaintiffs timely 

appealed “each and every part of this final order,” including 

the District Court’s September 15, 2010 orders denying their 

motions to remand the state cases to the Philadelphia Court of 

Common Pleas. App. 8.

II.

The District Court had subject matter jurisdiction over 

the plaintiffs’ FLSA claims pursuant to 28 U.S.C. § 1331, and 

we exercise jurisdiction over the District Court’s dismissal of 

 

5 The court also specifically denied the plaintiffs leave to 

amend their third amended complaints.
9

those claims pursuant to 28 U.S.C. § 1291.6 Our review over 

a district court’s grant of a motion to dismiss under Rule 

12(b)(6) is plenary. Fleisher v. Standard Ins. Co., 679 F.3d 

116, 120 (3d Cir. 2012). “To survive a motion to dismiss, a 

complaint must contain sufficient factual matter, accepted as 

true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks 

omitted). “A claim has facial plausibility when the plaintiff 

pleads factual content that allows the court to draw the 

reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. Though “detailed factual 

allegations” are not required, a complaint must do more than 

simply provide “labels and conclusions” or “a formulaic 

recitation of the elements of a cause of action.” Bell Atl. 

Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A.

 

6

In addition to appealing the District Court’s dismissal of 

their FLSA claims, the plaintiffs appealed from (and the 

parties’ briefs discuss at length) the District Court’s order 

denying the plaintiffs’ motions to remand the state cases on 

the basis that they were completely preempted by ERISA § 

502(a) and LMRA § 301. We need not rule on whether the 

court’s preemption ruling was correct because the issue is 

moot in light of the District Court’s later orders — which the 

defendants do not challenge — dismissing all of the state law 

claims pursuant to 28 U.S.C. § 1367. We further express no 

opinion as to whether the plaintiffs’ state law claims are 

preempted by ERISA § 514(a), which provides, in relevant 

part, that ERISA “shall supersede any and all State laws 

insofar as they may now or hereafter relate to any employee 

benefit plan.” 29 U.S.C. § 1144(a) (emphasis added); see

Dukes v. U.S. Healthcare, Inc., 57 F.3d 350, 355 (3d Cir. 

1995) (“Removal and preemption are two distinct concepts.” 

(quotation marks omitted)); see also N.J. Carpenters & the 

Trs. Thereof v. Tishman Constr. Corp. of N.J., --- F.3d ---, 

2014 WL 3702591, at *3 (3d Cir. 2014) (“Complete 

preemption under § 502(a) is a jurisdictional concept, 

whereas express preemption under § 514 is a substantive 

concept governing the applicable law.” (quotation marks 

omitted)).
10

The plaintiffs first argue that the defendants did not 

compensate them for hours worked in excess of forty per 

week during meal breaks, at training programs, and outside of 

their scheduled shifts. The District Court found that the 

plaintiffs’ overtime claim was factually inadequate, on the 

ground that, “[t]he abundance of allegations 

notwithstanding,” the plaintiffs “failed to allege a single 

specific instance in which a named Plaintiff worked overtime 

and was not compensated for this time.” App. 70, 72 n.65. 

On appeal, the plaintiffs insist that “[n]othing in Twombly or 

Iqbal” requires them to plead the exact dates and times that 

they worked overtime. Plaintiffs’ Br. 27.

“The FLSA establishes federal minimum-wage, 

maximum-hour, and overtime guarantees that cannot be 

modified by contract.” Genesis Healthcare Corp. v. 

Symczyk, 133 S. Ct. 1523, 1527 (2013). Generally, an 

employer must pay its employees at least a specified 

minimum hourly wage for work performed, 29 U.S.C. § 206, 

and must pay one and one-half times the employer’s regular 

wage for hours worked in excess of forty hours per week, id.

§ 207. Employers who violate these provisions are “liable to 

the employee or employees affected in the amount of their 

unpaid minimum wages, or their unpaid overtime 

compensation, as the case may be, and in an additional equal 

amount as liquidated damages.” Id. § 216(b). Thus, to 

recover overtime compensation under the FLSA, “an 

employee must prove that he worked overtime hours without 

compensation, and he must show the amount and extent of his 

overtime work as a matter of just and reasonable inference.” 

Davis v. Food Lion, 792 F.2d 1274, 1276 (4th Cir. 1986) 

(citing Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 

687 (1946)).

The level of detail necessary to plead a FLSA overtime 

claim poses a more difficult question — one that has “divided 

courts around the country.” Nakahata v. N.Y.–Presbyterian 

Healthcare Sys., Inc., 723 F.3d 192, 200 (2d Cir. 2013). 

Some courts have required plaintiffs to allege approximately 

the number of hours worked for which wages were not 

received. See, e.g., Jones v. Casey’s Gen. Stores, 538 F. 

Supp. 2d 1094, 1102–03 (S.D. Iowa 2008) (holding that a 

complaint alleging that the plaintiffs “regularly worked 
11

regular time and overtime each week but were not paid 

regular and overtime wages” was “implausible on its face” 

(quotation marks omitted)). Other courts have adopted a 

more lenient approach, holding that, “[w]hile Defendants 

might appreciate having Plaintiffs’ estimate of the overtime 

hours worked at [the pleading stage],” a FLSA complaint will 

survive dismissal so long as it alleges that the employee 

worked more than forty hours in a week and did not receive 

overtime compensation. Butler v. DirectSat USA, LLC, 800 

F. Supp. 2d 662, 668 (D. Md. 2011). 

We agree with the middle-ground approach taken by 

the Court of Appeals for the Second Circuit in Lundy v. 

Catholic Health System of Long Island Inc., 711 F.3d 106 (2d 

Cir. 2013). In Lundy, the court held that “in order to state a 

plausible FLSA overtime claim, a plaintiff must sufficiently 

allege [forty] hours of work in a given workweek as well as

some uncompensated time in excess of the [forty] hours.” Id.

at 114 (emphases added) (citing 29 U.S.C. § 207(a)(1) 

(requiring that, “for a workweek longer than forty hours,” an 

employee who works “in excess of” forty hours shall be 

compensated time and a half for the excess hours)).

Similar to the plaintiffs here, the plaintiffs in Lundy

alleged that their employers, a collection of hospitals, 

healthcare providers, and related entities, failed to 

compensate them adequately for time worked during breaks, 

outside of scheduled shifts, and during required training 

sessions. Id. at 109. Plaintiff Patricia Wolman “typically” 

worked 37.5 hours per week, “occasionally” worked an 

additional 12.5-hour or “slightly longer” shift, and was not 

compensated for, inter alia, work done during thirty-minute 

meal breaks (which were “typically” missed or interrupted) or 

outside of her scheduled shifts (“typically” an extra fifteen 

minutes per shift). Id. at 114–15 (quotation marks omitted). 

The court held that Wolman failed to state a claim for 

overtime because, while her allegations could “theoretically” 

put her over the forty-hour mark “in one or another 

unspecified week (or weeks),” they “suppl[ied] nothing but 

low-octane fuel for speculation” as to that conclusion. Id. at 

115. Plaintiff Kelly Iwasiuk similarly averred that she 

“typically” worked thirty hours per week, worked extra shifts 

totaling between 37.5 and forty-five hours “approximately 
12

twice a month,” and was not compensated for, inter alia, work 

done during meal breaks or outside of her scheduled shifts. 

Id. (quotation marks omitted). Like Wolman, Iwasiuk “d[id] 

not allege that she was denied overtime pay in a week where 

she worked . . . additional shifts.” Id. The court therefore 

held that Iwasiuk’s allegations were similarly implausible. 

Id.

Under Federal Rule of Civil Procedure 8(a)(2), a 

“plausible” claim contains “factual content that allows the 

court to draw the reasonable inference that the defendant is 

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. 

Because Wolman and Iwasiuk each failed to allege “a single 

workweek in which [she] worked at least [forty] hours and 

also worked uncompensated time in excess of [forty] hours,” 

they did not satisfy this standard, and the Court of Appeals 

affirmed the district court’s dismissal of the FLSA overtime 

claims. Lundy, 711 F.3d at 114–15.

In the present case, each named plaintiff alleges that he 

or she “typically” worked shifts totaling between thirty-two 

and forty hours per week and further alleges that he or she 

“frequently” worked extra time. For instance, Collette Davis 

“typically” worked the 3:00 p.m. to 11:30 p.m. shift five days 

per week, totaling forty hours, exclusive of the 2.5 hours 

deducted from her pay for meal periods (during which she 

“frequently” worked), the one to two hours she worked after 

her shift, and the twenty hours of annual continuing education 

units she was required to complete. App. 820–21. Because 

they “typically worked full time, or very close to it” and “also 

worked several hours of unpaid work each week,” Plaintiffs’ 

Br. 24, the plaintiffs surmise that “[i]t [is] certainly plausible 

that at least some of the uncompensated work was performed 

during weeks when the plaintiffs[’] total work time was more 

than forty hours,” Plaintiffs’ Br. 27. We disagree. 

Determining whether a plausible claim has been pled 

is “a context-specific task that requires the reviewing court to 

draw on its judicial experience and common sense.” Iqbal,

556 U.S. at 679. None of the named plaintiffs has alleged a 

single workweek in which he or she worked at least forty 

hours and also worked uncompensated time in excess of forty 

hours. Of the four named plaintiffs who allege that they 
13

“typically” worked at least forty hours per week, in addition 

to extra hours “frequently” worked during meal breaks or 

outside of their scheduled shifts — Davis, Erica Williams, 

Gerardina Ilaria, and Diane Read — none indicates that she in 

fact worked extra hours during a typical (that is, a forty-hour) 

week. Their allegations are therefore insufficient. See, e.g., 

Lundy, 711 F.3d at 114 (“[I]n order to state a plausible FLSA 

overtime claim, a plaintiff must sufficiently allege [forty] 

hours of work in a given workweek as well as some 

uncompensated time in excess of the [forty] hours.” 

(emphases added)); see also Nakahata, 723 F.3d at 201 (citing 

Lundy and holding that “[p]laintiffs must provide sufficient 

detail about the length and frequency of their unpaid work to 

support a reasonable inference that they worked more than 

forty hours in a given week”).

In reaching this conclusion, we do not hold that a 

plaintiff must identify the exact dates and times that she 

worked overtime. For instance, a plaintiff’s claim that she 

“typically” worked forty hours per week, worked extra hours 

during such a forty-hour week, and was not compensated for 

extra hours beyond forty hours he or she worked during one 

or more of those forty-hour weeks, would suffice.7 But no 

such allegation is present in this case. 

 

7

In Manning v. Boston Medical Center Corp., 725 F.3d 34 

(1st Cir. 2013), the Court of Appeals for the First Circuit 

considered allegations that the plaintiffs were scheduled to 

work forty hours per week “regularly,” “approximately once a 

month,” and “at least once a year.” Id. at 46 (quotation marks 

omitted). Because “[a]ny time that they worked during meal 

breaks, before or after their shifts, and in training periods, 

would thus entitle them to overtime compensation,” the court 

held that the allegations stated a FLSA overtime claim under 

the Lundy standard. Id. at 46–47. Admittedly, unlike the 

plaintiffs in Manning, and certain of the named plaintiffs in 

this case, none of the plaintiffs in Lundy alleged that they 

typically worked, at a minimum, forty hours per week.

However, we do not interpret Lundy to hinge on the absence 

of such allegations. Instead, we read the decision to hold that 

a plaintiff must connect the dots between bare allegations of a 

“typical” forty-hour workweek and bare allegations of work 

completed outside of regularly scheduled shifts, so that the 
14

Accordingly, the District Court did not err in 

dismissing the plaintiffs’ claims for overtime under the 

FLSA.

B.

The plaintiffs also challenge the District Court’s 

determination that their claims for gap time are not within the 

FLSA’s purview.

In addition to seeking unpaid overtime compensation, 

employees may seek to recover wages for uncompensated 

hours worked that “fall between the minimum wage and the 

overtime provisions of the FLSA,” otherwise known as “gap

time.” Adair v. City of Kirkland, 185 F.3d 1055, 1062 (9th 

Cir. 1999). Gap time

refers to time that is not covered by the 

overtime provisions because it does not exceed 

the overtime limit, and to time that is not 

covered by the minimum wage provisions 

because, even though it is uncompensated, the 

employees are still being paid a minimum wage 

when their salaries are averaged across their 

actual time worked.

Id. at 1062 n.6. In other words, “gap time” is non-overtime 

hours worked for which an employee is not compensated. 

Because an employee has a sufficiently high hourly rate, 

when all compensated and non-compensated hours are 

divided into the weekly pay, the employee’s average hourly 

pay still exceeds the FLSA minimum.

Courts widely agree that there is no cause of action 

under the FLSA for “pure” gap time wages — that is, wages 

for unpaid work during pay periods without overtime. See, 

e.g., Nakahata, 723 F.3d at 201 (“[T]he FLSA is unavailing 

 

allegations concerning a typical forty-hour week include an 

assertion that the employee worked additional hours during 

such a week, and we believe that this middle-ground 

approach is the correct one.
15

where wages do not fall below the statutory minimum and 

hours do not rise above the overtime threshold.”); Monahan v. 

Cnty. of Chesterfield, Va., 95 F.3d 1263, 1280 (4th Cir. 1996) 

(same). However, some courts have recognized as viable gap 

time claims by an employee who exceeds the overtime 

threshold, but whose employment contract does not 

compensate him or her for all non-overtime hours (“overtime 

gap time”). See, e.g., Monahan, 95 F.3d at 1272–73; Valcho 

v. Dallas Cnty. Hosp. Dist., 658 F. Supp. 2d 802, 811–12 

(N.D. Tex. 2009); Koelker v. Mayor & City Council of 

Cumberland, 599 F. Supp. 2d 624, 635 (D. Md. 2009); cf., 

e.g., 29 C.F.R. §§ 778.315, 778.317, 778.322.

As an initial matter, we agree with the clear weight of 

authority and hold that pure gap time claims — straight time 

wages for unpaid work during pay periods without overtime 

— are not cognizable under the FLSA, which requires 

payment of minimum wages and overtime wages only. See

29 U.S.C. §§ 201–19. The District Court therefore correctly 

found that, “[t]o the extent Plaintiffs seek recovery under the

FLSA for hours worked but not compensated below the 

[forty]-hour weekly threshold . . . the FLSA does not provide 

[them] the remedy they seek.” App. 69 (emphasis added); see 

also App. 845, 1469, 1655, 2330–31, 3259 (alleging that the 

plaintiffs “regularly worked hours both under and in excess of 

[forty] per week and were not paid for all of those hours” 

(emphasis added)). The court did not address, however, the 

possibility that the plaintiffs’ gap time claims might constitute 

claims for “overtime gap time.” We need not resolve the 

issue in this case because, as discussed above, the plaintiffs 

have not plausibly alleged that they worked overtime in any 

given week.8 The District Court’s order dismissing the third 

amended complaints will therefore be affirmed. 

 

8 The District Court additionally found that the plaintiffs’ 

third amended complaints did not plausibly allege that an 

employer-employee relationship existed between certain of 

the defendants and the named plaintiffs. See, e.g., App. 65–

68. Having concluded that the plaintiffs failed to state a 

plausible claim for overtime against any of the defendants, we 

need not address this issue. We also need not address the 

defendants’ argument that the Meal Break Deduction policy 
16

C.

The plaintiffs finally contend that the District Court 

erred in denying them another opportunity to amend the 

complaint. We review for abuse of discretion. Krantz v. 

Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140, 144 (3d Cir. 

2002). 

In its September 8, 2011 opinion dismissing the 

amended complaint, the District Court emphasized that any 

repleaded allegations would have to remedy the “gaping 

deficiencies” identified by “at least seven other district 

courts” that had dismissed similar complaints filed by the 

same counsel. App. 55 & n.70. “A District Court has 

discretion to deny a plaintiff leave to amend where the 

plaintiff was put on notice as to the deficiencies in his 

complaint, but chose not to resolve them.” Krantz, 305 F.3d 

at 144. Because the plaintiffs were on notice as to the 

deficiencies of their complaints, the District Court did not 

abuse its discretion by denying the plaintiffs leave to file a 

fourth amended complaint.

III.

For the foregoing reasons, the District Court’s orders 

will be affirmed.

 

does not, as a matter of law, violate the FLSA. See

Defendants’ Br. 35–42.